The Chicago Police Department seized property belonging to the plaintiffs, using the power granted it by the Illinois Drug Asset Forfeiture Procedure Act (DAFPA). The plaintiffs filed suit in an Illinois federal district court under 42 U.S.C. Section 1983 arguing that when property is seized under the DAFPA, due process requires a prompt, postseizure, probable cause hearing. The district court dismissed, but the plaintiffs asked for a rehearing in light of Mathews v. Eldridge, which prohibited the seizure of real property without a prior hearing. The U.S. Court of Appeals for the Seventh Circuit granted review.

On appeal, the Seventh Circuit held that the DAFPA did not provide adequate due process for an owner to contest the seizure of his property, reasoning the length of time between seizure and contest was too long (a maximum of 97 to 187 days). The court remanded the case and instructed the district court to devise a mechanism by which an owner can contest the validity of the retention of his property.

Question

In determining whether the Due Process Clause requires a state or local government to provide a postseizure, probable cause hearing, prior to a forfeiture of property, should the district court apply the test employed in United States v. $8,850 or that in Mathews v. Eldridge?

Unanswered. In an opinion authored by Justice Stephen J. Breyer, the court dismissed the case as moot. At oral argument, the parties confirmed that there was no longer any dispute about the ownership or possession of the property in question. Justice John Paul Stevens concurred in part but opposed vacating the judgment of the Court of Appeals.

Chief Justice John G. Roberts: We will hear argument first this morning in Case 08-351, Alvarez v. Smith.

Mr. Castiglione.

Mr. Castiglione: Mr. -- excuse me.

Mr. Chief Justice, and may it please the Court: Despite the holding in Von Neumann that the civil forfeiture hearing itself is all the process that is due for the seizure of personal property, the Seventh Circuit struck down Illinois's Drug Asset Forfeiture Procedure Act specifically because it does not require an additional adversarial hearing that takes place post-seizure but before the forfeiture hearing.

As far back as this Court's decision in Gelston v. Hoyt and Slocum v. Mayberry, this Court has recognized that the civil forfeiture hearing itself is the single unitary hearing, where all persons having an interest in the property are present and the following questions are resolved: One--

Justice Sonia Sotomayor: Is there any other area -- is there any other area of law where we permit a prejudgment attachment and/or seizure of property without a neutral magistrate reviewing the reason for that seizure?

We don't permit a pretrial attachment, do we, except in some narrow circumstances?

Mr. Castiglione: --Except in some narrow circumstances, and I note -- and certainly in garnishment cases and in replevin cases that you would have to have that type of hearing.

The -- there are three -- three of the Respondents sought the return of cars.

Three had had cash seized.

In the three car cases, the cars had actually been returned.

In two of the cash cases, the Respondents defaulted, and in one of the cash cases, the -- the State and the Respondent reached an agreement.

So those cases are over.

But we would submit, Your Honor, that this case is not moot because, subsequent to the Seventh Circuit decision in this case, the plaintiffs filed an amended motion for class certification, and that's at Docket 49 -- Docket Number 49 of the Northern District docket, filed on June 19th, 2008, specifically asking for damages and restitution, in addition to declaratory and injunctive relief.

Justice Samuel Alito: Well, has there ever been a case in which this Court has considered the merits of a dispute where the individual claims of the named plaintiffs expired before we heard argument and a -- and a class had not yet been certified?

Mr. Castiglione: That's not the case here, Your Honor.

At least one of the -- one of the Respondents, a certain Tyhesha Brunston -- her forfeiture case ended in 2009, so at the time the amended motion for class certification was filed asking for damages and restitution.

Justice Samuel Alito: No, but that wasn't my question.

The class has not yet been certified, has it?

Mr. Castiglione: No, it has not, Your Honor.

That's true.

Justice Samuel Alito: And the -- the claims of all the named plaintiffs are -- have expired?

Mr. Castiglione: Well, the injunctive claims may have expired, with the possible exception of the two Respondents whose -- whose cash cases were defaulted.

But, no, the damage claims, I think were--

Justice Ruth Bader Ginsburg: There were no damage claims when the final judgment was entered in the district court?

Mr. Castiglione: --That's correct, Your Honor.

Justice Ruth Bader Ginsburg: So it was a final judgment, and it went up on appeal.

And at what point did they seek to -- I mean, while the case was in the court of appeals, the final judgment dismissing the case, there was nothing for the district judge to do.

Mr. Castiglione: Well, but after the -- the Seventh Circuit reversed the district judge's decision granting the motion to dismiss, upon -- upon remand, the plaintiffs -- then, at that point, asked for a certification of the damage class and a restitution class and expressly stated that they wished to pursue a claim -- a claim for damages and restitution based on--

Justice Ruth Bader Ginsburg: But--

Justice Antonin Scalia: It wasn't granted then, and it still hasn't been granted.

Mr. Castiglione: --That's true, Your Honor.

And--

Justice Antonin Scalia: So you have nobody before this Court with a live claim, neither the original named plaintiffs nor a certified class.

Mr. Castiglione: --I would -- well--

Justice Antonin Scalia: So who's here?

Mr. Castiglione: --For -- for mootness purposes, Your Honor, I think the -- the fact that plaintiffs were allowed to ask for damages and -- and filed a pleading asking--

Justice Ruth Bader Ginsburg: So as the case comes to us, we have a district court final judgment dismissing the case.

The case was only for injunctive relief.

It goes to the Seventh Circuit.

It's in that shape.

We are taking the case from the Seventh Circuit.

Mr. Castiglione: Yes.

Chief Justice John G. Roberts: I -- I suppose, if the case is moot, then you are entitled to a Munsingwear order.

Mr. Castiglione: I would--

Chief Justice John G. Roberts: So there's no controlling authority.

Mr. Castiglione: --We would -- that's our position, Your Honor.

Chief Justice John G. Roberts: And then I suppose the district court doesn't know whether to award damages or not until it gets a final decision from -- or a decision from the Seventh Circuit or this Court.

Mr. Castiglione: That's correct, Your Honor.

I mean, the -- whether or not a damage claim could go forward would depend on the -- on the validity of the Seventh Circuit decision.

And our view, Justice Scalia, is that the -- when -- the -- upon -- even though they did not formally amend the complaint -- that's true; we acknowledge that, but in the -- in the motion for class -- in the amended motion for class cert, I think the assertion of the claim for damages, at least for mootness purposes, is enough to give this Court jurisdiction over -- over those claims.

Justice Ruth Bader Ginsburg: If it been there originally, but the problem is it wasn't there.

The case comes to us on a complaint that is simply for injunctive relief.

And that is moot.

Mr. Castiglione: That -- with the possible exception of the two Respondents whose claims defaulted, Your Honor, in that it's unclear what it -- to the extent they were seeking the return of their property, their situation has not changed.

Their property never was returned.

Justice Antonin Scalia: What were they seeking to have enjoined?

Mr. Castiglione: They were seeking, Your Honor -- they were asking the court to declare that the Illinois statute was unconstitutional for not providing an interim hearing, and an injunction preventing -- preventing Illinois from enforcing the statute.

Justice Antonin Scalia: But -- I -- since they defaulted in the -- in the final hearing, how can -- can they possibly have any claim left with regard to an interim hearing?

Mr. Castiglione: Well, I just think the nature of their claim hasn't changed.

To the extent they were seeking the return of their property through such an injunction, that hasn't changed for those two plaintiffs, Yunker and Williams.

But we rest our -- our response, Your Honor, and we will--

Justice Sonia Sotomayor: So am I forgetting, but didn't this start out as a class action and wasn't the claim -- wasn't the class action denied?

Mr. Castiglione: --It was denied as moot, that's correct, Your Honor.

Justice Sonia Sotomayor: And you didn't appeal that?

Mr. Castiglione: Well, we didn't -- we didn't appeal at all.

The plaintiffs appealed the district court's order, which -- it was a single order that granted -- I'm sorry -- that granted our motions to dismiss and denied plaintiffs' motion for class certification as moot.

That was the order.

Justice Ruth Bader Ginsburg: And the plaintiffs -- the plaintiffs didn't appeal the denial of certification.

Mr. Castiglione: The two -- well, no, Your Honor, they did not.

They appealed the order -- they appealed the denial of the motion to dismiss -- I'm sorry -- the granting of the motion to dismiss.

Excuse me.

Justice Ruth Bader Ginsburg: Well, maybe we should -- we should ask the plaintiffs about that.

But you're saying that the two cases that were defaulted are not moot?

Isn't a default the end of it?

Mr. Castiglione: I'm saying they may not be moot, Your Honor, in that the claim for relief has not -- and they defaulted before, in at least one of the cases, before the complaint was even filed.

So nothing has really changed in the status of their case.

I believe Mr. Williams -- nothing has changed in his case from the time the complaint was filed.

Justice Ruth Bader Ginsburg: You said in your opening that there is just the one proceeding, and that's the petition for forfeiture.

But in your brief you suggested that there is a means that these plaintiffs could get back their property pending the ultimate forfeiture proceeding.

You mentioned a Slocum type hearing, a petition for return of their property.

So I don't understand your argument that there's one and only procedure, the forfeiture procedure, when on the other hand you are telling us that there is a means.

Mr. Castiglione: Well, maybe I can explain, and I think it also goes to the -- what is -- why the 8,850 -- the use of 8,850 and the Barker speedy trial factors makes sense.

The one hearing where these issues are resolved is a civil forfeiture hearing, it's true.

But I think what Slocum does, just in a similar way to how speedy trial factors operate, it gives the claimant an opportunity to come in and ask the court to tell the government to fish or cut bait.

So you either file an action or release the property.

I think it operates much the same way that the speedy trial factors would operate in a criminal case.

Justice Antonin Scalia: And they -- and they can do that before the -- before the time period has expired?

Mr. Castiglione: Absolutely, Your Honor.

And they can certainly do that.

That's a remedy that's available up until -- up until the forfeiture case is filed, and from that--

Chief Justice John G. Roberts: But surely your position is going to be that the statutory procedure pre-empts and takes the place of any Slocum hearing, isn't it?

I mean, somebody comes in and files a petition saying, here I'm raising this right under, you know, an early 19th century procedure, and you're not going to say, okay, here's our position or here's the property.

You are going to say, wait until the forfeiture proceeding that is provided under Illinois law.

Mr. Castiglione: --Well, I -- the -- what Slocum does, Your Honor, we think -- we believe that Illinois has recognized for at least over 50 years that a property owner has a common law right to come in.

Justice John Paul Stevens: But that was before the statute was enacted.

Mr. Castiglione: That's certainly true, Your Honor, but that--

Justice Antonin Scalia: The statute is a dead letter if you allow a Slocum action.

All you -- all you need is a Slocum action, and the fact that the statute says you have to wait for -- you know, that the government has 40 days, is meaningless.

Mr. Castiglione: --Well, Slocum I think is a way of getting into court, getting the government--

Justice Antonin Scalia: Exactly.

It's a way of defeating the statute.

Mr. Castiglione: --Well, once -- once the government does act, Your Honor, then at that point I'd say if in fact the government's being -- once the government files a forfeiture action, if the government's dilatory, there's remedies under -- under Illinois law, our Code of Civil Procedure, or even perhaps a motion to dismiss for--

Justice Antonin Scalia: But the statute says the government isn't dilatory until -- until the time period, 40 days.

It has 40 days.

What does that mean if it doesn't mean that the government has 40 days?

Mr. Castiglione: --Oh, the -- I think -- I think certainly, Your Honor, the government does have the time periods.

Yes, I agree with that.

The government certainly has the time periods.

But if the case were to somehow to fall through the cracks and nothing would happen, I think what -- what the common law remedies provide is a safety net for property owners to be able to get into court.

Justice Antonin Scalia: Before the 40 days?

Mr. Castiglione: No, I would say after the 40.

I would say--

Justice Antonin Scalia: Oh, okay.

Well, that's a different story.

These people are asking for a hearing before the elapsing of the 40 days, and if all -- if all you say that Slocum provides is a hearing after the 40 days have elapsed and nothing has occurred, that doesn't satisfy what they are asking for.

I would say, if the government does nothing, it's a way of getting into court.

Justice Antonin Scalia: It doesn't have to do anything for 40 days, is what the statute says.

Mr. Castiglione: And we don't dispute that.

And--

Justice Antonin Scalia: But you say if it -- you don't dispute that doesn't have to do anything, but you -- you assert that if it does nothing, you can bring a Slocum action.

I mean, which is it?

One or the other?

Mr. Castiglione: --Well, Slocum is an equitable remedy.

If someone can establish -- I don't think before the time has run out in our procedures one could probably establish that, but it's possible if a case were to -- were to fall through the cracks, and it gives--

Chief Justice John G. Roberts: Slocum then is the answer to a very different case.

It's a case where you have a class action of people whose cases fell through the cracks and never got the procedures they were entitled to.

It doesn't seem at all responsive to the claim that they are entitled to procedures before it falls through the cracks.

Mr. Castiglione: --Well, our position, Your Honor, is that the -- the statute -- is the regime that Illinois has adopted with the time periods, does -- does comply with due process.

It provides a way of dealing with some number of the issues Respondents have raised.

Justice John Paul Stevens: But isn't the basic argument that you make that a forfeiture hearing is all the process that is due?

Mr. Castiglione: Yes, Your Honor.

Justice John Paul Stevens: Now, let me ask you this question: Suppose your statute said there shall be a forfeiture hearing with all the procedures you want, but the forfeiture hearing shall take place 1 year after the seizure.

Would that be adequate?

Mr. Castiglione: Under this Court's view -- decision in FDIC v. Mallen, I don't think you would look to the outer limits, Your Honor.

But I think--

Justice John Paul Stevens: Yes, I'm saying the minimum.

The hearing will take place 1 year after the seizure, nothing earlier or nothing later.

Would that be constitutional?

Mr. Castiglione: --Again, applying -- well, if it is possible for the States to do it in a shorter fashion--

Justice John Paul Stevens: Clearly, it's possible to do it in less than a year.

Mr. Castiglione: --And if a State -- if a State's practice were to do so, but I would say--

Justice John Paul Stevens: Well, there is no practice, no background practice.

This is a new statute.

So this -- you have to have a forfeiture hearing, as you describe it, that shall take place 6 months--

Mr. Castiglione: --One year later.

Justice John Paul Stevens: --or a year later.

Would that be constitutional?

Mr. Castiglione: Well, that's shorter than the time period that this Court found complied with due process in 8,850--

Justice John Paul Stevens: Well, I understand what the Court has held.

I'm asking your view of that hypothetical statute.

Mr. Castiglione: --I think -- I think--

Justice John Paul Stevens: And if you agree that it's unconstitutional, then you have to agree that time is -- is relevant to the question whether the forfeiture hearing--

Mr. Castiglione: --I would not agree -- I would not agree that it's unconstitutional.

Justice John Paul Stevens: --So you would then say it would be constitutional to say one hearing 1 year later?

Mr. Castiglione: I think facially it is.

Justice Antonin Scalia: Ten years?

Mr. Castiglione: Well, I think, again, I'd go back to FDIC v.--

Justice Antonin Scalia: Ten years?

Mr. Castiglione: --Well, no, I would say 10 years without any judicial intervention--

Justice Antonin Scalia: You've -- you've given up the position, then.

You've said time does matter.

So we are just arguing over what the time is, whether it's 10 years, 1 year, or 40 days, right?

Mr. Castiglione: --Well, 40 days I think is consistent, is I think a reasonable--

Justice Antonin Scalia: It may be, but that's a different argument.

It's -- it's not an absolute.

It's -- we have to consider whether the time period is reasonable, right?

Mr. Castiglione: --If -- if -- I would say this: If the statute said you can't come in -- the State said you can't proceed for 10 years and no one has any -- property owner or interest owner has no way of going into court, that probably would be--

Justice Samuel Alito: I ask you this about the government's interest involved here and the practicality of the situation, and I want to put aside the innocent owner defense, which I hope to ask your adversary about.

But putting that aside, let's take what I envision as sort of the typical case where the police officer arrests someone in a vehicle for a drug offense and -- without a warrant -- and then has to file a complaint in court.

What -- what is the government -- what is the burden on the government, and what would be the burden on Chicago or the State of Illinois in a requirement that within some reasonably brief period of time after that that there must be the equivalent of the filing of a complaint in court, just as you would for the arrest of an individual without a warrant, where the only issue would be whether there was probable cause for the seizure, not whether there, you know, is some innocent owner defense, but just whether there's probable cause?

Mr. Castiglione: --I think there are several burdens.

One, I think that hearing would be duplicative of the ultimate forfeiture hearing.

I think if it's an adversarial hearing, it might be a way of doing, like, a -- like, almost back door discovery in the -- in the attendant criminal case if we had to do an adversarial hearing in a civil forfeiture case.

I think it disregards the State's interest, Your Honor, in -- in promoting informal negotiation and settlement.

And that's something I had hoped to talk about.

Justice Stephen G. Breyer: I mean, he was just talking about probable cause.

How could that be duplicative?

Mr. Castiglione: Well, just something along the line--

Justice Stephen G. Breyer: Look, I thought this case, though I grant you I could well be wrong, is not about a final forfeiture hearing where you have to show that it's more probable than not that the car was used for drugs.

But under the Illinois law, just as Justice Alito said, you can seize a car without a warrant.

Mr. Castiglione: --Yes.

Justice Stephen G. Breyer: And there are lists of circumstances.

But in the Florida statute that Justice Thomas wrote about, it said that a person whose car it is, is entitled to a hearing, I thought, in a brief time to see if there was probable cause, just as a person arrested.

You have to bring them before a magistrate within a short time to see if there's probable cause.

Now, how do you do that in Chicago?

Mr. Castiglione: Well, first of all, Justice Breyer, we say the complete deprivation of one's liberty is not the same as the deprivation of property.

The way we do it under our statute -- the way we deal with this issue is there's -- the statutory regime really has two concepts, one for property, seized property, that -- whose value exceeds 20,000, and one where--

Justice Stephen G. Breyer: So you're saying the answer to the question is there is no way?

A person who doubts this probable cause has no way.

He has to wait 6 months until there's a forfeiture hearing.

He's out of luck because then it merges with the merits.

Mr. Castiglione: --It does merge with the merits.

That's historically--

Justice Stephen G. Breyer: Okay.

That's your answer.

There is no way.

Mr. Castiglione: --Well, there's still a--

Justice Stephen G. Breyer: Then I don't see why you win this case.

Mr. Castiglione: --there's no formal hearing.

Justice Stephen G. Breyer: What?

Mr. Castiglione: I'm sorry, Your Honor.

Justice Stephen G. Breyer: I mean, is there a way or not?

You have pointed to three statutes.

Do they give him any way?

Mr. Castiglione: Those statutes are a way to getting into -- to getting into court--

Justice Stephen G. Breyer: Look--

Mr. Castiglione: --to expedite the hearing.

And once the hearing is filed, Your Honor, it is certainly possible to -- you know, to move to expedite the trial.

Justice Ruth Bader Ginsburg: How do you get an expedited hearing?

I thought -- I thought for property under 20,000, the State -- the time before the forfeiture proceeding could be 187 days.

Mr. Castiglione: Forty-five of those days, Your Honor, is what would be the property owner deciding whether to file a claim.

And if -- I mean, one of the possibilities -- it's at section 6 of our statute, which is actually nonjudicial in rem forfeitures.

If one were to simply file -- a property owner simply file a claim but not a cash bond, then there wouldn't be a judicial proceeding.

It would just be informal negotiations with the State's attorney.

One could always go to court by filing a cash bond.

Justice Ruth Bader Ginsburg: And the bond is for costs, not to get your car back.

Mr. Castiglione: The bond is for costs, right.

But the--

Justice Ruth Bader Ginsburg: Is there -- is there any procedure for putting up a bond for the car so you can get the car back, for the full value of the car?

Mr. Castiglione: --There isn't, Your Honor.

I would briefly address that.

I know I have 1 minute remaining.

I would like to -- to reserve the time for rebuttal.

I would like to answer this question.

No, Your Honor.

For bond, about 80 to 85 percent of our cases are cash, seizures of cash, and as the Seventh Circuit recognized, posting a cash bond for cash is an absurdity.

With respect to cars, Your Honor, the problem is the State's duty is to be able to preserve and prevent the destruction or dissipation of the property prior to the forfeiture hearing.

If we bond it out, we can't guarantee that at the ultimate forfeiture hearing, that property would be -- would be preserved.

Your Honor, I would like -- if I may, I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: We will afford you additional time because the Court's questions have intruded upon your rebuttal time.

Mr. Castiglione: Thank you, Your Honor.

Chief Justice John G. Roberts: Mr. Jay.

ORAL ARGUMENT OF WILLIAM M. JAY ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Mr. Jay: Mr. Chief Justice, and may it please the Court: I would like to begin, if I may, with the colloquy that Justice Stevens and Justice Scalia had with my co-counsel about the hypothetical where the State mandates a minimum time--

Chief Justice John G. Roberts: Well, I would think you'd begin with the mootness question.

Mr. Jay: --I would be happy to begin with the mootness question, Your Honor.

And I -- although I think that it's, to some degree, a question for the Respondents what precisely they are seeking.

Because there are two Respondents, Yunker and Williams, who have lost their property.

The property is in the possession of the State.

And if their position is that unless a hearing is held within 10 days, which is what they originally asked for in their complaint, a probable cause hearing within 10 days, if after that no forfeiture is possible because timely post-deprivation process has not been afforded, if that's their claim, then it appears their claim is still alive because the State still has their property.

If, however, their claim expires when the forfeiture proceeding is actually held, then that proceeding is over and we agree that their injunctive claims are moot.

Justice Antonin Scalia: Well, what were they seeking to enjoin?

Mr. Jay: It's not entirely clear from their complaint, Your Honor.

They were -- they were asking for the imposition of this 10-day hearing requirement, but it -- and they are -- they were contending -- now, each of these was filed after the 10 days had run.

The most recent seizure had occurred 2 months before the class action complaint was filed in district court.

So it appears they were contending that they wanted the forfeiture proceeding stopped because a hearing had not been held within 10 days.

So the complaint doesn't make perfectly clear what kind of injunction they were seeking except that they wanted the imposition of this 10-day procedure.

Justice Sonia Sotomayor: What did the Illinois court do?

Didn't it remand for an appropriate hearing to be given?

Mr. Jay: Your Honor, the Seventh Circuit remanded for the district court to fashion -- to fashion some kind of procedure, that's right.

And after that remand order the plaintiffs, interpreting what the Seventh Circuit had said, filed the amended motion for class certification that Mr. Castiglione referred to, and in that they said they wanted a class certified to pursue damages for the time that their property was detained, and they wanted the court to certify a class of anyone who had had their property held for more than 7 days this time without -- without a proper hearing.

Justice Stephen G. Breyer: Am I right that what is -- what is the rationale your supporting it for the following: My car was parked on the street.

There happened to be some big drug crime nearby, and the policeman took my car.

In my opinion, there was no probable cause.

I would like my car back.

Now, I take it that in Illinois there is no proceeding, as there was in Florida, so that I can claim there was no probable cause, and I -- none at all.

I never get that determination made; and, moreover, I have to wait, for 6 months possibly, before I get a different determination made, which is whether they had -- more likely than not, whether that's entitled to forfeiture on the merit.

Is that the law?

If anything like it is the law, what's the constitutional justification for it?

Mr. Jay: Well, let me begin, Your Honor, by pointing out that it's not the law, because the State's ultimate burden at the hearing is not preponderance of the evidence; it's probable cause.

It's -- it's precisely the same burden that--

Justice Stephen G. Breyer: You mean they can keep my car even if it's more likely than not that it was never involved?

Mr. Jay: --When the -- when the State shows probable cause, the burden shifts to the claimant to prove by a preponderance -- so the ultimate burden is by a preponderance.

Justice Stephen G. Breyer: But it's still -- okay, fine.

Mr. Jay: But it's--

Justice Stephen G. Breyer: Thank you.

That is -- all right.

That's a burden of proof thing at the final thing.

That's not the thrust of my question.

The thrust of my question is: Do I have to wait for up to 6 months before I have any magistrate, any neutral official, pass on my claim there was no probable cause to take my car?

Mr. Jay: --And, Justice Breyer, you--

Justice Stephen G. Breyer: And the Florida statute, by the way, doesn't do that.

It says of course you get a hearing on probable cause.

Mr. Jay: --The Florida statute--

Justice Stephen G. Breyer: Am I right?

Mr. Jay: --The Florida statute -- you are correct -- unique as far as I know among all the statutes legislated by the 50 States that use asset forfeiture or the Federal Government, does provide an adversarial probable cause hearing within the--

Justice Stephen G. Breyer: Okay.

So nobody gives you -- they go around taking cars even without probable cause.

There's no way to do -- it happens in every State.

What's the constitutional justification for making a person wait for 6 months before he gets a neutral judicial official to say whether there was even cause to take his car?

Mr. Jay: --The constitutional justification, Justice Breyer, requires that a reviewing court look at each step in the process, and it's not just a matter of 6 months from beginning to end.

That process in Illinois and in many other systems has different steps.

The first step is investigation and notice.

The -- and then the second step is deciding whether to pursue this.

The third step is completely in the hands of the claimant, where the claimant decides whether to pursue a judicial hearing.

And the fourth--

Justice Sonia Sotomayor: I'm sorry.

You take the car and then you investigate?

Mr. Jay: --Your Honor, there's more to investigate than just the probable cause to seize.

In many cases, the probable cause to believe the car is forfeitable is ironclad, but there is more to investigate because, for example, an innocent owner in Illinois by statute is entitled not to have her car or her gun or her personal -- other personal property -- it could be currency -- forfeited.

And that--

Justice Sonia Sotomayor: But -- but you are -- but you're sort of begging the question.

You are saying to me that initial period is for the government to figure out if it made a mistake or not, and we're entitled to that time.

You're not entitled, meaning you, property owner, to go to a neutral magistrate who will make that decision without a personal interest in the outcome, because the person who seized does have an interest of some sort.

Many local police departments do in seizing property, because they keep the proceeds.

So what you're saying is that constitutionally it's okay for the party holding on to property without a warrant to decide whether or not it wants to give something back, whether or not there's -- there's a viable defense.

I'm a little confused.

Mr. Jay: --Let me respond to that in a couple of steps.

And the first is to respond to your point about the incentives that local police departments may face.

There is no incentive to -- to hold property longer than necessary because, while the property is being held, there is no ability to access that property.

If it's currency, for example -- as Mr. Castiglione pointed out, 85 percent of their seizures are -- the currency is held in a suspense account and is not accessible by the -- by the seizing government at all.

So the government has no interest in delaying longer than necessary, especially for cars.

The government has to take care of the car, maintain it in a lot, you know, preserve it from -- from harm.

Second, on the basic question of what is the government doing during this time?

The government has a due process obligation, especially in an in rem proceeding like this one, which deals with a piece of property to which there may be competing claims.

The government has a -- itself has a due process obligation to notify everyone who has a claim to this property that it's in the government's custody and that there will be a proceeding to adjudicate the competing claims to it.

I mean, this Court in Robinson v. Hanrahan, a decision in 1972, held that Illinois under its forfeiture statute had violated due process by not providing notice to the owner -- to the registered owner of a car, because it sent notice to that owner at his address when in fact he was in the custody of the State of Illinois in a criminal proceeding.

The State has an obligation to notify -- to investigate, especially after a seizure, even if it is a car which only a minority of seizures are -- even if it is a car.

Identifying the driver is not enough to identify who has a claim to that car.

There may be a registered owner.

There may be -- there may be a security interest.

In currency cases, it's even more difficult, because on the face of currency there is no indication who owns the currency--

Justice John Paul Stevens: May I just get you to answer what I thought you were going to do at the beginning of the argument.

How do you answer my hypothetical?

You have a forfeiture hearing, but you have a provision that it shall not take place for 6 months.

Mr. Jay: --And that, of course, as I think the hypothetical recognizes, Justice Stevens, is different from a statute like we have here where there's a maximum time, but it may well take place within--

Justice John Paul Stevens: I understand it's different.

I'm just curious to know what your answer is.

Mr. Jay: --My answer, Justice Stevens, is that it might well be unconstitutional as applied.

And the Court, in 8,850, says--

Justice John Paul Stevens: Wouldn't it be unconstitutional on its face?

Mr. Jay: --It wouldn't be unconstitutional on its face, Justice Stevens, because sometimes the State has a valid interest in holding property for more than a year, as Mr. Castiglione said.

In 8,850 itself, the property was held for 18 months.

The Court has said in any due process case--

Justice John Paul Stevens: Would that justify a statute that says in all cases it shall be held for at least 18 months without telling the owner?

Mr. Jay: --I think, Your Honor, that if the State responded to an 8,850 defense and said -- and said nothing other than the statute says 18 months or 10 years, and -- you know, and we have done nothing during that time, I think that it would be unconstitutional as applied.

But as a practical matter, States and the Federal Government are not sitting around doing nothing after seizing property.

They are actively investigating who has a claim, they are notifying all claimants, they are allowing -- allowing those claimants to file claims if they wish.

A majority of all seizures are uncontested.

And then whenever a claimant wants one, that claimant is entitled to an in rem judicial hearing, where all -- all claimants come into court and have -- have the government's right to seize the property adjudicated and also the affirmative defenses, such as the innocent owner defense.

Now--

Justice Antonin Scalia: Suppose a situation in which the property taken is really essential to the -- to the living of the person from whom -- who owns it -- a car -- and the person needs a car to get to work every day.

And -- and there is really no reason why the -- why the government has to wait that long.

Is there no procedure by which he can say, you know -- do it quickly.

You don't have to wait so long.

I'm the owner.

I'm the only owner.

I can -- I can prove that.

Let's have a quick hearing.

Mr. Jay: --I think that as the Federal framework reflects, that is the kind of situation that is -- that can be addressed by legislation.

And the Federal hardship provision, 18 U.S.C. 983(f), is a good way of illustrating that; that the government has competing interests in all these cases that compete with the claimants' interests and in cases such as currency, where the government can't be secured against the possibility that the property will disappear, then -- then there's no hardship exception.

And -- but the government -- Congress, after extensive study, has made a hardship provision for other forms of personal property.

Chief Justice John G. Roberts: Thank you, counsel.

Justice Ruth Bader Ginsburg: There is no -- there's no hardship under the Illinois statute?

There is no provision comparable to the Federal legislation for hardship, is there?

Mr. Jay: You are correct, Justice Ginsburg, that there is no statutory provision, no.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Peters.

ORAL ARGUMENT OF THOMAS PETERS ON BEHALF OF THE RESPONDENTS

Mr. Peters: Mr. Chief Justice, and may it please the Court: This case is not moot.

It's not moot because at the time that the plaintiffs filed the case they clearly had standing.

They immediately moved for class certification.

And although their motion for class certification was denied, it was denied because the merits of the case were simultaneously denied.

And, in fact, this Court has addressed a situation remarkably similar to this in United States Parole Commission v. Geraghty.

In the Geraghty case, the class was not certified.

It was denied, as it was here.

The case became moot because the plaintiff in that case was a Federal prisoner, had been released on parole, and nonetheless the Court allowed the case to proceed.

And the reason the Court allowed the case to proceed, as I understand it, is that the

"capable of repetition, yet evading review. "

doctrine was invoked.

Once that document is invoked, the claim -- the standing relates back to the time of the filing of the complaint.

At the time of the filing of the complaint, there was standing, and the putative class--

Justice Antonin Scalia: And you say it was likely to -- these same named plaintiffs were likely -- likely -- to face this same situation again?

Mr. Peters: --No, that's not what I'm saying, Your Honor.

What I'm suggesting--

Justice Antonin Scalia: Well, if you are relying on -- on, you know,

"capable of repetition, yet evading review. "

that's -- that's the test, whether -- whether indeed these people stand a chance of having the same thing happen.

Mr. Peters: --I respectfully beg to differ, Your Honor.

With respect to class actions and cases where the plaintiff has timely requested to certify a class, the "capable of repetition" relates to the class.

There is right now today a class of people in the city of Chicago who have their cars impounded.

That -- their claims are repeating daily.

Justice Antonin Scalia: You are begging the question.

That is, you are assuming that the class is a valid class.

It hasn't been certified.

How -- how can you make that -- that argument when there is no class?

Mr. Peters: Well, I -- I can make that argument--

Justice Antonin Scalia: Just an asserted class on your part.

There's no class.

Mr. Peters: --Yes, and that was also true in Geraghty, Your Honor.

There were -- the motion for class--

Justice Sonia Sotomayor: No, it wasn't.

The appeal in Geraghty included an appeal of the denial of class certification.

Mr. Peters: --Yes, it did, Your Honor.

Justice Sonia Sotomayor: So both issues -- both the merits and the denial of the class certification -- were still active before the Court.

Here you didn't appeal the dismissal of the class certification or the mootness of it.

Mr. Peters: Well, we couldn't, Your Honor, because it was inextricably linked to the merits.

In Geraghty--

Justice Sonia Sotomayor: But -- but in many appeals parties plead in the alternative and say, if you -- if we win on the merits, reverse the dismissal of the class certification because we still want to proceed as a class.

You didn't do that.

You waited for the merits to be adjudicated and then filed a new class action.

It's a very different procedural step.

Mr. Peters: --I don't think that it is significantly different when one considers the concerns that animated the Court's decision in Geraghty.

The concerns that were at issue in that case were the fact that the plaintiff was representing a class that was going to continue to exist and that as to that class there was constantly going to be a claim repeating; and that that person, even though the class was denied -- in that case it truly -- it was denied on the merits, because he had an opportunity to litigate the merits.

We did not have a -- opportunity to litigate the merits of the Rule 23 issue.

Justice Ruth Bader Ginsburg: Mr. Peters, I think the Court in Geraghty said it split the interests.

And they said his interests in challenging the denial of class action status continued even though he was no longer incarcerated.

So they were concentrating on his right to appeal the denial of class action certification.

And that's what you don't have here.

And that's what distinguishes this case from Geraghty.

Mr. Peters: I -- I certainly agree that it is not an identical situation, Your Honor.

But I think -- as I said before, I think again that the concerns that caused the Court to reach that position in Geraghty are in fact the same because in this case the -- there is a continuing activity with respect to the class.

There is some -- there are a group of people who are aggressively pursuing the rights of that class.

There is a live controversy between the government and that class.

So in all of those respects, which are similar to what--

Justice Ruth Bader Ginsburg: But we must take it as it came into the Seventh Circuit, which is no appeal from the denial of class certification.

So we have individual plaintiffs who are seeking to overturn the denial of injunctive relief.

And that's all that's before the Seventh Circuit.

Mr. Peters: --That was -- that was all that was before the Seventh Circuit because I don't -- it seems to me that it is just sort of a gratuitous gesture to say, I am appealing the denial of the class certification ruling, when the class certification ruling is itself based entirely on the denial of the merits.

If there had not -- if there had been any inkling, any ruling that suggested that the Rule 23 aspect, the class aspect, was being denied on class-related grounds, then of course there would be an appeal.

But what--

Justice Antonin Scalia: As it turns out it -- it wouldn't have been gratuitous.

Justice Stephen G. Breyer: But if I have a different position, which is I'd like to see if it's practical to decide this case now, two things stand in the way in my mind which I'd like you to address.

The first is your opponents are saying, no, you shouldn't really address this issue now because there are three Illinois statutes which actually give them, anyone who wants it, a right to a hearing at least on probable cause.

And that's a matter of Illinois law.

And although the statutes don't seem to say it, they might.

And the second is that this seems mixed up in my mind -- not necessarily your fault; it may be my mind -- but it seems to me there are two quite separate questions: when you are entitled to a final hearing of whether forfeiture is right or wrong; and whether you are entitled to a preliminary hearing on whether there was probable cause under the statute to obtain the car.

Now, that latter question I think might be impractical in many cases to work out until there's been a trial of an individual who's accused of a crime, which may be much later.

But the former question is where I think you have a point, that there are five instances here in this statute where a policeman could seize a car without a warrant and he has to have probable cause under most of them nonetheless.

So your clients might say: He did not have probable cause; I want a neutral magistrate to contest it.

Now, in my mind that reaches -- that's a different question than the final hearing about who's entitled to the car.

And I also see the three statutes and now I see a case where here in front of me everything is mixed up.

So I think -- perhaps I'm just seeing it that way, but those issues are mixed up confused and not separated out.

So why don't we wait?

What's your answer now?

Mr. Peters: --I think that -- that waiting would be the prudent thing to do.

And it's unquestionably true that what we're suggesting with respect to the preliminary hearing is not identical to the final hearing.

The final hearing is -- is on the merits.

It decides where the property is going to, finally and ultimately.

The hearing we are talking about is a conditional release hearing, similar to what happens in Krimstock, similar to what happens under the Civil Asset Forfeiture Review Act.

Chief Justice John G. Roberts: Well, but then if it's -- if it's money that is being conditionally released, there's no security for the government.

If it turns out later on it shouldn't have been released, it's probably gone.

Mr. Peters: Well, there -- there could be grounds for -- there could be ways of getting security for it.

I mean, perhaps a person would post some other collateral because they desperately needed the cash at that moment.

I certainly agree with Your Honor that the bond procedure is much more in tune with and much more likely to work with cars than with other property.

Justice Samuel Alito: May I ask you--

Mr. Peters: Sure.

Justice Samuel Alito: --exactly what you think needs to take place at this hearing?

And the hearing you think has to take place within 10 days?

Is that your figure?

Mr. Peters: No, Your Honor.

In the complaint we did reference 10 days, and the reason we did that is because we thought that that was an appropriate time frame.

Justice Samuel Alito: I have two questions: Must it be an adversarial hearing, and must the State disprove the innocent owner defense?

Mr. Peters: No and no.

I think that the -- with respect to whether it's an adversarial hearing, I -- what we envision is a hearing similar to what happens in Krimstock where basically the government's burden is met by having police reports which on their face establish probable cause to at least seize the car.

Justice Samuel Alito: Well, but my understanding of Krimstock is that a lot of those seizures -- and others know more about this than I do -- were for DWI, and that it is possible to assert an innocent owner defense there.

And that's where I see a great impracticality in this.

I -- I don't see how you can expect the State to come into court within such a short period and have any burden of contesting an innocent owner defense without compromising a criminal investigation.

Mr. Peters: Well, if there was -- my answer to that, I think, Your Honor, is in two parts: One is the Federal Government is already doing something like that with the CAFRA.

There are hardship provisions, and part of the hearing could include showing by the car owner or the property owner that they are in fact likely to prevail as an innocent owner.

Now--

Justice Ruth Bader Ginsburg: I thought that -- I thought the government said it doesn't apply to cash.

So that -- which we are told is 85 percent of the seizures involved.

Mr. Peters: --The CAFRA doesn't apply to cash.

That's true.

Justice Ruth Bader Ginsburg: Right.

Justice Samuel Alito: Well, let me give you this example which is pretty much based on something that you -- you wrote in your own brief.

Joe is arrested on a drug offense driving a car, and there are drugs in the car.

But Joe isn't the owner of the car; John is the owner of the car.

Then John comes in 10 days later or 14 days later and says, well, you know, I never had any inkling that Joe was using the car to deal in drugs and had no reason to know that.

And you think that within that short period of time the State has to disprove that, you know, that John didn't have--

Mr. Peters: No, Your Honor.

Justice Samuel Alito: --reason to believe that Joe was involved in drug dealing?

Mr. Peters: No, Your Honor.

I think the burden will be on the property owner to establish first that that the person is the owner of the property, and second to establish to some yet-undefined degree that they have a likely innocent owner defense.

Justice Antonin Scalia: I thought you said -- I thought you said the innocent owner defense didn't have to be inquired into in the probable cause here.

I thought that was your position.

Mr. Peters: It -- it is not ordered by the Seventh Circuit but I -- we would believe that an innocent owner--

Justice Antonin Scalia: Okay, you want--

Mr. Peters: --argument should be included, and--

Justice Antonin Scalia: --Okay.

That makes it harder.

You're challenging this -- this statute on its face, isn't that right?

Mr. Peters: --No, Your Honor.

Justice Antonin Scalia: No?

Mr. Peters: As applied.

Justice Antonin Scalia: Just as applied?

Mr. Peters: Yes, we made that clear in the complaint.

There has never been any argument--

Justice Antonin Scalia: No, how can you have an--

Mr. Peters: --to the contrary until this Court.

Justice Antonin Scalia: --How can you have an as-applied challenge to an entire class?

Mr. Peters: Well, first of all, Your Honor, what we're suggesting, the order of the Seventh Circuit does not invalidate any provision of this Act and in fact it's entirely consistent with section 2 of the Act, which incorporates by reference Federal remedies which include interim remedies.

So it is not how the Act on its face is written.

It's how it is being applied to these people.

And in addition to that, we are not suggesting that every--

Justice Antonin Scalia: Why -- why -- to -- to have an as-applied challenge, regardless of whether the Illinois law provides a -- a remedy, wouldn't you be able to individually assert under section 1983 unconstitutional action?

I mean, isn't there a Federal remedy?

If all you're concerned about is as-applied, you mean you are being treated unconstitutionally by a State and you have no remedy?

Mr. Peters: --There is a Federal remedy, Your Honor, but that is not--

Justice Antonin Scalia: Why isn't that enough?

Mr. Peters: --That's -- that's certainly not enough, Your Honor, for the following reason: It is largely impractical for most people -- many of the people who are involved in drug forfeiture seizures are people with modest to low incomes, probably little to no access to attorneys.

The likelihood of them understanding, first of all, that they may have this right, then contacting an attorney and getting an attorney to litigate--

Justice Antonin Scalia: But they will know about the probable cause hearing that you want to -- that you want set up, right?

Mr. Peters: --If -- this is why it should be a class, and it clearly applies to a large class of people.

Justice Antonin Scalia: Which -- which is why you are asking for a facial challenge.

You want these hearings in all cases--

Mr. Peters: No, Your--

Justice Antonin Scalia: --regardless of what the individual circumstances are; isn't that so?

Mr. Peters: --No, that is not so.

Justice Antonin Scalia: It is not so?

Mr. Peters: Yes, and the reason is--

Justice Antonin Scalia: Well, what are the individual circumstances of all the other people in the class?

We don't know what they are.

We don't know whether it's a car that has been taken, money that has been taken, whether they are millionaires, whether they need the car.

We know nothing about them.

Mr. Peters: --That's correct, Your Honor.

But that's a function of the fact that this case came to the Court without the benefit of discovery, without having an opportunity to identify.

But what I was -- what I would suggest to Your Honor is this: We are not suggesting that every single person who has a piece of property taken is necessarily entitled to this hearing.

If, for example, the police seize my favorite baseball card, I would not be entitled to a hearing under the Mathews criteria because my favorite baseball card does not justify putting the government through the expense.

On the other hand, there are categories of people -- say they seized $5,000.

There is some limit below which the hearings may not apply.

But if all--

Chief Justice John G. Roberts: What if -- what if at your innocent owner or the hearing that you are seeking, you establish, well, I was going to sell my baseball card to give me the money to -- to survive, to get food?

That was my -- I mean, what happens then?

Mr. Peters: --There would have to be -- first of all, we don't know how that would administratively be handled because of the posture of the case, but my suggestion, Mr. Chief Justice, would be this: That the likely result in a case -- in this case, is that there should be hearings for all car owners and that there should be a baseline dollar value below which a person is not entitled to a hearing.

Now, how that--

Chief Justice John G. Roberts: So just to get back to the cars, I thought your answer to Justice Alito was a little abstract.

In the absolute concrete case, where the drug -- the suspect is driving the car, there are drugs in the car.

Mr. Peters: --Yes.

Chief Justice John G. Roberts: At your hearing, the -- it's not registered to him.

The registered owner comes in and says, that's my car, I had no idea it was being used for drugs.

Who wins, the State or the registered owner?

Mr. Peters: Well, in -- in those circumstances and that's the only car, I would say, most likely, the property should be returned to the car owner.

However, I would add that, if the government has some concerns about -- for example, that they need additional time to investigate this innocent owner claim, then by having the hearing in front of a neutral and detached person--

They are going to say, well, we don't know if the registered owner is involved in the drug conspiracy.

We don't know how closely he is tied with the owner, so it's reasonable to assume he knew what was going on, and besides, we've got a lot of other bigger fish to fry during this period.

We are trying to find out the scope of the conspiracy.

We are trying to find out where the sales were going to take place.

Why do you force us to -- to focus our energies on the relationship between a registered owner and the guy driving the car?

Mr. Peters: --Well, I don't think that that is likely to happen, and I think what's going on in New York is proof that that is not how it works out, and I think--

Justice Samuel Alito: Well, the situation is much worse than that, that they don't have the -- that they need time to investigate.

They may have the registered owner under investigation.

They may think he is involved in the drug conspiracy as well.

They may have him on wiretaps.

They may be preparing to arrest him.

Now, you want to force them to come into court within 10 or 14 days and disclose the details of a -- of a pending criminal investigation and prepare to -- that makes a great--

Mr. Peters: --No, Your Honor.

I'm not suggesting that at all.

Justice Samuel Alito: --Well, then I don't understand how this -- how you can possibly have the innocent owner issue adjudicated at this quick hearing.

I can understand the argument that you have to have the filing of the equivalent of a -- of a complaint when you -- that has to be filed when someone is arrested without a warrant, where it's not adversarial and you establish probable cause for the seizure.

But when you start to go beyond that in drug forfeiture cases, at least, not -- not DWI cases, I just don't see how that's workable.

Mr. Peters: Well, except--

Justice Sonia Sotomayor: Counsel, can you unpackage for me this hearing?

Because there is a confusion in it that appears, both in your papers and in this argument.

There's a probable cause component, which is the police coming before a neutral magistrate and saying, this is the reason I seized; I have probable cause to believe that this car was involved in an illegal activity, and this is why.

And then there is what sounds like, to me, a sort of remission-type component to the hearing you are looking at, which is a magistrate saying, okay, you have probable cause, but there's no reason for the seizing authorities to keep the car because you can post a bond instead, or something else should be done to mitigate the damage to you during this process of forfeiture.

Am I correct that there are two components to your request?

And if there are, I understand the probable cause component, but I'm not sure how you get to the second component of how and why due process would require the State to have a -- I'm calling it remission -- but a remission-like proceeding?

Am I correct?

Am I understanding what -- what it is you're--

Mr. Peters: --Yes, Your Honor, but let me go back in response to your question and, I think, in part to Justice Alito's.

The Seventh Circuit hasn't ordered any specific hearing, so I am, at this point, advising the Court of what I think this hearing should look like.

It could well be, upon remand and discovery, that what I am suggesting the -- the hearing should look like, it may -- it may not look like that at all.

It could be that--

Justice Ruth Bader Ginsburg: Isn't that one of the problems with the Seventh Circuit decision?

That it covers the waterfront.

It covers cash, as well as any property.

It's not concentrated on cars.

And what your complaint asks for -- you said it was as applied, but you are asking for a declaration that defendants must hold a post-seizure probable cause hearing within 10 business days, and you are asking the Court to enjoin the defendant's current practice of seizing property and retaining custody without a judicial determination of probable cause.

That sounds, to me, like a facial challenge to this statute, and you are asking for a declaration that the statute is invalid, not as applied to any particular person.

Mr. Peters: --I think it's invalid as applied to categories of people, but I would continue to maintain--

Justice Antonin Scalia: You think -- you think it's unconstitutional as applied to everybody who is not given this -- this preliminary hearing.

That's -- that's what the complaint says.

Your -- the class you want certified is the class of everybody who has not been given a preliminary hearing.

I don't know the difference between that and saying that this statute is unconstitutional as applied.

Mr. Peters: --On that--

Justice Antonin Scalia: I mean, just -- just because you don't say in your complaint, this is a facial challenge, it amounts to a facial challenge.

You say, everybody who has not been given a preliminary hearing is entitled to relief because the statute is bad as to all of them.

Mr. Peters: --The Seventh Circuit, however, did not endorse completely what we alleged in the complaint.

We, of course, in the complaint, like most complaints, ask for as much as you think you might be able to get.

But the Seventh Circuit did not order hearings across the board for every single person whose property is taken.

And I'm not suggesting that every single person whose property is taken will necessarily be entitled to a hearing.

Justice Stephen G. Breyer: Okay, can we--

Mr. Peters: There are--

Justice Stephen G. Breyer: --Go ahead.

Finish.

Mr. Peters: --There are going to be circumstances when the value of the property is de minimis as compared to the cost of the hearing.

And--

Justice Antonin Scalia: That is not the class you asked to be certified.

You asked to certify everybody who had been denied a preliminary hearing.

Mr. Peters: --Yes, I -- I did, Your Honor, and in that regard, I was mistaken, but the Seventh Circuit corrected my mistake and only ordered a remand for a determination as to who it would be, who would be entitled to--

Justice Ruth Bader Ginsburg: Where -- where does the Seventh Circuit--

Justice Antonin Scalia: It doesn't change this -- this action from a class action -- from a facial challenge into a nonfacial challenge.

They can't change your complaint.

You were either asking this to be struck down on its face, or you weren't.

And what -- what the Seventh Circuit did doesn't change that.

Mr. Peters: --Well, Your Honor, I think what the Seventh Circuit did does change it because now the ruling is what was determined by the Seventh Circuit, and the Seventh Circuit did not say that every single person is entitled to a hearing.

Justice Stephen G. Breyer: Well, can I get to the merits for a second?

Mr. Peters: Yes, sir.

Justice Stephen G. Breyer: Go back to what Justice Alito and Justice Sotomayor were asking.

This statute gives a policeman the right to seize some property without a warrant if it's a circumstance where you could seize a person without a warrant.

That's basically what it says, doesn't it?

Mr. Peters: Yes.

Justice Stephen G. Breyer: All right.

In that kind of situation, I would think maybe you are entitled to a quick hearing where the only subject would be: Was that language carried out?

Was that policeman right?

Was there probable cause, or wasn't there?

Now, if that's the issue, I don't see why you give up at all on the baseball card.

I mean, if somebody comes into my house and takes a baseball card, and he's supposed to have probable cause and he doesn't, I don't see why I can't go get a judge or a magistrate, determine whether he had at my baseball card, and pretty quickly, too.

Justice Antonin Scalia: Some of them are worth--

Justice Stephen G. Breyer: But if you go to the other--

Justice Antonin Scalia: --a lot of money.

Yes.

Justice Stephen G. Breyer: --If you go to the other, which is whether there's an innocent owner or whether in fact you should give bail to the property -- I mean, that's -- I know we give bail to people, but I don't know that we give bail to property.

Maybe real property, but that seems a much more complex argument.

So I want to know: What's your authority that we should give bail to the property and have a hearing on that?

Mr. Peters: I don't--

Justice Stephen G. Breyer: And why do you give up in respect to baseball cards or anything in effect to the first?

Mr. Peters: --Well, I wouldn't like to give up my favorite baseball card, but the reason that I said that, Your Honor, is this: The Mathews criteria, which we are espousing here, require a cost-benefit analysis, and if the value of the property under that -- using that criteria does not warrant a hearing, then as to that property, there shouldn't be a hearing.

So there doesn't have to be a hearing in every case.

There may--

Chief Justice John G. Roberts: So it's as -- so it's as applied in every case, which I think ties in a little bit to the mootness question that we began with.

Because it focuses on the circumstances of the individual claimants, and if the individual claimants have already had their property returned, I think it accentuates the mootness issue.

Mr. Peters: --I -- I continue to maintain, Your Honor, that the -- as long as there was standing when the case was filed, and as long as there is a live class that could be represented by these class -- or putative class--

Justice Antonin Scalia: "My potential class", you should call it.

Mr. Peters: --Potential class.

Yes, Your Honor.

Then there is standing on -- and I believe that the standing can be established through the Geraghty decision.

I agree that it is not literally identical to Geraghty, but I think the underlying circumstances that animated the Court's decision in that case are the same and that, therefore, these people maintain standing.

If, however, in response to a question that you asked Mr. Castiglione earlier, if the case became moot as a result of the return of the property, then it wouldn't be a Munsingwear situation.

It would be a Bancorp v. Bonner situation, because if it became moot as a result of the settlement of the case after the Seventh Circuit's decision, then the Seventh Circuit's decision should stay in place.

So if -- I do not agree that the case is moot, but if hypothetically the case were moot, then we are not in a Munsingwear situation; we are in a Bancorp situation, because the mootness--

I mean, is it becoming moot through their voluntary cessation or activity when the State law requires them to take particular action?

Mr. Peters: --No, what -- what I'm saying, Your Honor, is if we're -- if we're defining mootness as the ultimate return of the property, then the property was returned pursuant to settlements in four of the cases.

So if the case was settled and became moot because of the settlement, it is not a situation in which the Court can adopt the Munsingwear position.

It really is a Bancorp situation, and the Seventh Circuit's decision remains--

Justice John Paul Stevens: Of course, all of these problems really arise out of the fact that the effect of the court of appeals' decision basically was to overrule the motion to dismiss, left everything open on remand.

So if we said it is moot, you'll just get another plaintiff and bring another lawsuit, which is what you do if the Court -- we are trying to get into the case much earlier than we should, it seems to me.

Just let the proceedings go ahead on remand and find out what all the -- all these factual answers that -- or these questions that should be answered.

You'll just say you've got to file another lawsuit and start over again.

Mr. Peters: --Yes.

Justice John Paul Stevens: But if you just say, we -- probably, in my judgment, we ought to dismiss this writ as improvidently granted and let the record be developed and the case go by, and we could decide the issues.

Mr. Peters: That, it seems to me, is a very wise choice of action.

Justice Ruth Bader Ginsburg: --But where you said -- you said that--

Mr. Peters: For obvious reasons.

But beyond that--

Justice Ruth Bader Ginsburg: --the Seventh Circuit -- your complaint, you say, is -- you asked for the universe, every kind of property of due process hearing within 10 days or a short period.

But you said the Seventh Circuit narrowed the relief.

And I'm looking at the Seventh Circuit decision, and I really don't see what was narrowed.

I think they left everything open for the district Court.

Mr. Peters: --Well, they--

Justice Ruth Bader Ginsburg: Where -- where is there any narrowing?

Mr. Peters: --Well, the narrowing, as I perceive it, Your Honor, is this: I believe the Court said at different times whether an appropriate remedy can be fashioned.

The Court did not say for whom.

It didn't say it must be for everybody.

It didn't say what would be necessary to trigger the right to the hearing.

It didn't say how much time would elapse.

It left -- it did leave, in that sense, everything open, but by leaving everything open, it also allows the court to narrow the categories of people who would be entitled to this hearing that -- in such a way that it would be an effective practical remedy.

Well, Your Honor, initially, two of the claimants here lost their property.

They defaulted.

Three had their property returned.

This is not a case where the matter -- the underlying matter is concluded by voluntary cessation.

Justice Antonin Scalia: I thought they didn't.

I thought some didn't have it returned, but there was a settlement.

Mr. Castiglione: One did, Your Honor, but it wasn't in response to the Federal litigation.

So our position would be if this is moot, this is really -- Munsingwear would apply.

Justice Antonin Scalia: The mootness was not a result of any settlement between the city and--

Mr. Castiglione: That's correct.

Well, I mean -- it didn't settle because of the lawsuit.

Justice Antonin Scalia: --Your -- your friend said the opposite.

I mean--

Mr. Castiglione: Well, it settled, Your Honor, just as through a normal course.

It was not a response to the Federal litigation that was going on independently.

Justice Antonin Scalia: --I don't understand.

Mr. Castiglione: Well, I'm--

Justice Antonin Scalia: They got all of their property back?

Mr. Castiglione: --Oh, no, no.

In most cases, yes, Your Honor.

The private -- the hearing -- the cases went to hearing and the three -- with the three car owners and they ultimately received their cars back.

Justice Antonin Scalia: No, I don't understand.

They got their cars back, right?

Mr. Castiglione: Yes.

Justice Antonin Scalia: The people who had money at stake, what happened to the money?

Mr. Castiglione: Two of them -- two defaulted and one reached a settlement with the State.

Justice Antonin Scalia: A settlement?

Mr. Castiglione: Yes, sir.

Justice Antonin Scalia: So you have at least one case where the mootness is attributable to a settlement.

You have at least one plaintiff, and you can't get the kind of remand for mootness that you are asking for.

Mr. Castiglione: No, I understand, Your Honor.

I'm just making the point that if this case -- if the Court finds it's moot, that we would want -- would ask for an entry of an order vacating the orders below pursuant to -- pursuant to Munsingwear.

Justice Antonin Scalia: But we don't do Munsingwear orders where -- where the mootness is a result of a settlement.

Mr. Castiglione: Our position, Your Honor, is that the settlement wasn't in response.

We didn't settle the Federal -- we didn't settle the Federal litigation.

The -- the underlying forfeiture case was -- was resolved.

Chief Justice John G. Roberts: I thought your answer is that they didn't all settle.

Mr. Castiglione: They all didn't settle.

That's right.

In fact, that's a better answer, I think, Your Honor.

Justice John Paul Stevens: Well, what good would a Munsingwear order do, anyway?

They'll just file another lawsuit, won't they?

Mr. Castiglione: They could.

Justice John Paul Stevens: Yes.

Mr. Castiglione: They certainly could, if you -- they have the right to do that, Your Honor.

Justice John Paul Stevens: And then if the district judge said -- having read this opinion, which was vacated, says, well, I guess it states a cause of action, I will deny the motion to dismiss -- we would be exactly where we are now.

Mr. Castiglione: We -- and we would.

There is no doubt about that.

Justice Sonia Sotomayor: Can I just get clarification?

Under your State law, there is no way for an owner to come in and challenge probable cause to seize?

And, second, is there any procedure under your State law to do the second half of what your adversary said he was looking for, a remission-type proceeding that would balance the government's need to hold the property and the individual's need for it, and whether there is a bond that could be posted or not?

Mr. Castiglione: Not that we -- Illinois doesn't provide for a bond, Your Honor.

As we indicated, there are problems with bonds, certainly for cash and for -- and for other personal property as well, but--

Justice Sonia Sotomayor: Well, that may be part of the Mathews issue, that once you prove probable cause, giving away -- giving back money just never would probably be rational to hold a hearing about, but that might not be true for real property, correct?

Under -- even under Mathews, under -- in a Mathews analysis.

Mr. Castiglione: --I'm not sure I understand Your Honor's question.

Justice Sonia Sotomayor: If you apply a Mathews analysis--

Mr. Castiglione: Yes.

Justice Sonia Sotomayor: --the multifaceted item would say for the seizure of cash, maybe only the hearing has to address probable cause, but for real property it has to go further.

Not real property, in the sense of real personal property.

It has to go further, because there has to be some sort of protection of the interest of the individual, pending--

Mr. Castiglione: Let me attempt to address that.

The -- the statute does contemplate, Your Honor, section -- especially section 6 of DAFPA, nonjudicial remedies, and then essentially if the amount of property is under 20,000 or if we are dealing with a car, which falls under section 6, those cases are routinely dealt with by negotiation, Your Honor.

And I think that's the best way to deal with hardship -- the hardship examples given -- is that both through negotiation and a speedy hearing--

Chief Justice John G. Roberts Jr.: Justice Breyer has the opinion of the Court in case 08-351, Alvarez versus Smith.

Justice Stephen G. Breyer: Under Illinois law and certain circumstances, the police can seize a car or cash without a warrant; I suppose they were arresting somebody and they didn't have time to get the warrant.

Now the question in this case was, whether Illinois law provides such a person with a sufficiently speedy opportunity to have a hearing, so he could contest that the law -- that he -- that it was an unlawful seizure.

Well when oral argument was taking place here, we learned that all the real arguments between the parties have ended.

The state returned the cars.

The disputes over the cash had been settled.

The case was not a damages case, not ongoing.

It wasn't a class action.

It didn't involve the kind of threat of repetitive action that might evade review.

So we have to say there is no continuing controversy and have to conclude that the case was moot.

Now there is still an issue, because ordinarily when a case is moot what we do is we order the judgment below vacated and we remand the case to the lower court with instructions to dismiss.

But there was a question here because in a case called Bankcorp, we said we'd let that lower court judgment stand, we wouldn't vacate it.

When the mootness occurred because the parties settled the underlying case, we thought it seemed somewhat unfair to permit a party to moot a case, say deliberately or intentionally just by settling it to avoid our decision, understandable but we did it, but sometimes, but here however the termination of respondent's underlying forfeiture case in the State Courts were not really settlements as the case Bankcorp meant to use that term.

We explain in our opinion that the termination of those forfeiture cases seem to have nothing to do or very little to do with any effort to avoid a decision here so we ended up saying we will follow our ordinary practice.

We vacate the judgment below.

We remand to the Court of Appeals with instructions to dismiss the case.

Justice Stevens has filed an opinion concurring in part and dissenting in part.